Braziel et al v. NOVO Development Corporation

Filing 65

ORDER denying 50 Motion for Summary Judgment Signed by Honorable David C Norton on February 26, 2019.(cban, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
BISHARA BRAZIEL and LAMONT
)
GEORGE, as Co-Personal Representatives )
of the Estate of Daimere S. George,
)
)
Plaintiffs,
)
)
vs.
)
)
NOVO Development Corporation, d/b/a
)
NOVO Properties,
)
)
Defendant.
)
____________________________________)

No. 2:17-cv-03244-DCN
ORDER

This matter is before the court on defendant Novo Development Corporation’s
(“NOVO”) motion for summary judgment, ECF No. 50. For the reasons set forth below,
the court denies the motion.
I. BACKGROUND
This case arises out of the accidental drowning of three-year-old Daimere S.
George (“decedent”) in the swimming pool of South Pointe Apartments (“South Pointe”)
at 6220 North Murray Avenue in Hanahan, South Carolina. At the time of the incident,
NOVO was the owner and operator of South Pointe. Plaintiffs Bishara Braziel
(“Braziel”) and Lamont George (“George”) (together, “plaintiffs”) allege that on May 18,
2016, NOVO was preparing for the pool opening in June and left gates and access points
to the pool unlocked, unsecure, opened, and/or left the pool in such a condition that
enable decedent to gain entry to the pool. That day, decedent was found face down in the
pool; he died on May 25, 2016.

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Plaintiffs filed suit on December 1, 2017, bringing causes of action for wrongful
death pursuant to S.C. Code § 15-51-10 and survival action pursuant to S.C. Code 15-590. Plaintiffs allege that decedent’s death was proximately caused by NOVO’s negligent,
negligent per se, grossly negligent, careless, willful, wanton, and reckless conduct. On
January 7, 2019, NOVO filed the instant motion for summary judgment. ECF No. 50.
On January 22, 2019, plaintiffs filed their response. ECF No. 56. The motion is ripe for
the court’s review.
II. STANDARD
Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of
summary judgment . . . such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. “[A]t the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Id. at 249. The court should view the
evidence in the light most favorable to the non-moving party. Id. at 255.

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III. DISCUSSION
NOVO asks the court to grant summary judgment on both of plaintiffs’ claims,
arguing that because the fence surrounding the pool did not violate the requirements of
applicable building codes, NOVO neither created nor had notice of an unsafe or
hazardous condition. The court disagrees with NOVO’s position.
Property owners owe a duty of care to those on their property. Larimore v.
Carolina Power & Light, 531 S.E.2d 535, 538 (S.C. Ct. App. 2000). This duty varies
depending on whether they are adult trespassers, invitees, licensees, or children. Id. In
2007, the Supreme Court of South Carolina adopted § 339 of the Restatement (Second)
of Torts as the state’s official law for premises liability cases involving children. Henson
ex rel. Hunt v. Int’l Paper Co., 650 S.E.2d 74, 81 (S.C. 2007). Section 339 provides that
[a] possessor of land is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor
knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to
know and which he realizes or should realize will involve an unreasonable
risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or
realize the risk involved in intermeddling with it or in coming within the
area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden
of eliminating the danger are slight as compared with the risk to children
involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger
or otherwise to protect the children.
Restatement (Second) of Torts § 339 (1965).
As plaintiffs point out, NOVO does not mention this standard in its motion for
summary judgment. Rather, NOVO’s arguments revolve solely around whether certain
building codes relied upon by plaintiffs’ expert witness actually applied to South Pointe
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at the time of decedent’s drowning. Alan Campbell (“Campbell”), plaintiffs’ expert
witness, relied on the following three building codes, among other things, in formulating
his opinion: (1) the 2012 International Building Code (“2012 IBC”); (2) the 2012
International Property Maintenance Code (“2012 IPMC”); and (3) the 2012 International
Swimming Pool and Spa Code (“2012 ISPSC”). ECF No. 59-1, Campbell Redlined
Report at 9.
Campbell’s expert report and deposition testimony identify two flaws in the
pool’s enclosure—gates that did not self-latch and a brick fence with holes that were too
wide. Specifically, there are “four access gates built into the brick enclosure surrounding
the pool area.” Id. at 5. Three of these are wrought iron gates that are not self-latching.
Id. The fourth is a wooden gate with a keypad and is used by residents when the pool is
open; Campbell did not specify whether this gate self-latches but does not contend that
decedent entered the pool area through this gate. Id. Campbell also noted that the pool
is surrounded by a brick enclosure with openings between the bricks measuring about
three inches wide and four inches high. Id. at 3. Plaintiffs argue that decedent gained
access to the pool either through a non-self-latching gate which had been left open or by
climbing the fence using the spaces in the brick. ECF No. 56 at 6.
Campbell’s report compares the state of the pool’s fence and gates to the three
aforementioned building codes. First, his report addresses the 2012 IBC, which he
admitted was not enforced by Hanahan at the time of the drowning. ECF No. 50-2,
Campbell Dep. 79:8–18. The 2012 IBC requires that “fence or screen enclosures shall be
equipped with self-closing and self-latching gates” and that “spacing within the cutouts

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[of the fence] shall not be greater than 1.75 inches in width.” ECF No. 59-1, Campbell
Redlined Report at 8 (quoting 2012 IBC §§ 3109.3 and 3109.4.1.3).
Next, he turns to the 2012 IPMC, which had been adopted and enforced by the
City of Hanahan at the time of the incident and which requires that “[e]xisting structures
and premises that do not comply with these provisions shall be altered or repaired to
provide a minimum level of health and safety as required herein.” Id. at 9 (quoting 2012
IPMC § 101.3). Campbell reported that the 2012 IPMC requires that “[g]ates and doors
in such barriers shall be self-closing and self-latching.” Id. (quoting 2012 IPMC § 303).
Campbell’s report does not discuss whether the IPMC has requirements for the size of
cutouts or spaces within the fence surrounding the pool.
Finally, Campbell addresses the 2012 ISPSC, which, like the 2012 IBC, was not
enforced by Hanahan at the time of the drowning. ECF No. 50-2, Campbell Dep. 90:21–
91:2. “Similar to the requirements found in [ ] the IBC, subsection 305.2.5 of the ISPSC
requires that spacing between vertical members and within decorative cutouts not exceed
1.75 inches.” ECF No. 59-1, Campbell Redlined Report at 9. The 2012 ISPSC also
requires that “pedestrian access gates . . . shall be self-closing and have a self-latching
device” and that “gates not intended for pedestrian use, such as utility or service gates,
shall remain locked when not in use.” Id. at 9–10 (quoting 2012 ISPSC §§ 305.3).
Campbell noted that “[w]hile the 2012 editions of the IBC and ISPSC were not
fully enforceable at the time of the incident, they would be considered applicable industry
standards related to the design of safety features for the pool.” Id. at 11. Campbell
concluded that “the drowning and death of [decedent] was a direct result of the lack of
compliance with regulations and industry standards related to the gate at the pool at South
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Point” and that “the brick enclosure [around the pool] afforded climbing and would have
allowed [decedent] to access the pool even if the gate near the pump house was locked.”
Id. at 13.
NOVO argues that the court should grant summary judgment “because the barrier
surrounding the subject pool did not violate the requirements of the applicable building
codes,” and therefore NOVO “neither created nor had notice of any unsafe or hazardous
condition.” ECF No. 50 at 17. NOVO is concerned by Campbell’s attempt to “conflate”
the 2012 IPMC, which is applicable, with the inapplicable 2012 IBC and 2012 ISPSC.
ECF No. 50 at 9. According to NOVO, Campbell’s report improperly argues that
NOVO’s alleged violation of the 2012 IBC and 2012 ISPSC’s size requirements for gaps
within the brick enclosure created a dangerous condition in violation of the 2012 IPMC’s
broader mandate that entities like South Pointe Apartment maintain a “minimum level of
health and safety.” 2012 IPMC § 101.3. NOVO contends that it is inappropriate for
Campbell to “shoehorn” these inapplicable provisions of the 2012 IBC and 2012 ISPSC
regarding the fence gaps into his expert opinion through generic terminology about safety
in the 2012 IPMC. ECF No. 50 at 4. Further, NOVO argues that since it never received
any citations for these purported violations of the building codes, it was never put on
notice of any alleged unsafe or hazardous condition.
First, the court is unsure whether NOVO is asking for summary judgment merely
on plaintiffs’ negligence per se claims or on all of plaintiffs’ claims. With all of its
references to the building codes, the motion for summary judgment reads as an attempt to
obtain summary judgment on a negligence per se claim. A negligence per se claim
obviously cannot survive if it is based on an inapplicable code or regulation, but NOVO
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has neither presented any law or arguments on plaintiffs’ negligence per se claims nor
mentioned “negligence per se” at all in its motion. The complaint enumerates 37
allegations of NOVO’s negligence, and only two of these reference “regulations,
ordinances, [or] codes.” ECF No. 1 ¶ 21(w)–21(x). The remaining allegations relate to
general negligence, gross negligence, willfulness, wantonness or recklessness in
breaching the duty owed to decedent. Plaintiffs may still prevail under Restatement
§ 339 even if the negligence per se claims fail.
Turning to plaintiffs’ claims of NOVO’s negligence and recklessness in regards to
the standard of safety required by landowners towards children under § 339, the court is
unsure how NOVO would like it to apply its arguments about the inapplicable codes—
2012 IBC and 2012 ISPSC—to the five elements that plaintiffs must prove under § 339.
Is NOVO asking the court to find that Campbell cannot rely at all upon the inapplicable
codes to opine about industry standards and whether NOVO breached those standards by
failing to update its gate and fence around the pool?1 If so, is NOVO arguing that,
without expert testimony about NOVO’s violation of industry standards, plaintiffs are
unable to prove their case under § 339? If so, which particular elements of § 339 are they
unable to prove and why? Because of the manner in which NOVO constructed its motion
for summary judgment, the parties have not presented arguments about the role that
Campbell’s testimony plays in determining whether the “burden of eliminating” the

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NOVO contends that Campbell has offered nothing to support his claims that the
2012 IBC and 2012 ISPSC constitute industry standards for safe conditions of a
swimming pool or that he is qualified to opine about them. However, NOVO provides no
further reasoning to as to why Campbell cannot rely on the 2012 IBC and the 2012
ISPSC to testify regarding industry standards for pool safety. ECF No. 50 at 4.
Additionally, the court has already denied NOVO’s motion to exclude or limit
Campbell’s testimony. ECF No. 51.
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pool’s danger was “slight compared with the risk to children” or whether NOVO “fail[ed]
to exercise reasonable care to eliminate the danger or otherwise to protect the children.”
Restatement (Second) or Torts § 339(d)–(e). The court will not engage in conjecture
about a party’s intent or argument, nor will it grant summary judgment on grounds that
have not been raised by the moving party.2
NOVO cites Kauffman v. Park Place Hosp. Grp., 2011 WL 1335832, at *1
(D.S.C. Apr. 7, 2011), aff’d, 468 F. App’x 220 (4th Cir. 2012), in support of its argument
that Campbell may not rely upon inapplicable building codes. The plaintiff in Kauffman
was injured after he fell while walking down the ramp at the entrance to the hotel in
Charleston, S.C. where he was a guest. There was no railing at the end of the ramp where
he fell. He brought a negligence cause of action against the hotel, alleging that the hotel
breached its duty of care to him, an invitee, by failing to update the ramp’s handrail to
comport with the 2003 International Property Maintenance Code (“2003 IPMC”). The
2003 IPMC had not been adopted by Charleston, and the court found that the inapplicable
code did not create a duty for the hotel to comply with the 2003 IPMC’s terms. The
Fourth Circuit affirmed, finding that the applicable building code did not require handrail
extensions and that the plaintiff “did not show that [defendants] otherwise had a duty to
alter the ramp’s handrail.” Kauffman v. Park Place Hosp. Grp., 468 F. App’x 220, 221–
22 (4th Cir. 2012).

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Moreover, the court finds that plaintiffs have presented sufficient evidence from
which a jury could determine that that one of the non-self-latching gates was left open,
allowing decedent to access the pool. Based on Campbell’s testimony regarding the 2012
IPMC’s requirements for self-latching gates, it is inappropriate to grant summary
judgment on the entirety of plaintiffs’ claims when there is a dispute of fact regarding one
of the theories underlying plaintiffs’ negligence claims.

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Notably, Kauffman involved a premises liability action brought by an invitee and
required the plaintiff to prove breach of a duty to an invitee, not breach of the standard of
care owed to a child under Restatement § 339. The plaintiff in Kauffman failed to
demonstrate that the hotel owed him any duty beyond complying with applicable building
codes. However, the language of § 339 indicates that a property owner might still be
liable for injuries sustained by a child on the owner’s land—and might “otherwise ha[ve]
a duty to alter” the dangerous condition—even if the property complies with applicable
building codes. Kauffman does not foreclose plaintiffs from relying on various
international standards for buildings and pools to argue that NOVO’s property fell short
of industry standards for safety.
NOVO opens its motion for summary judgment by arguing that “because the
barrier surrounding the subject pool did not violate the requirements of applicable
building codes, [NOVO] neither created nor had notice of any unsafe or hazardous
condition” and that as a result, “no genuine issue of material fact exists and defendant is
entitled to summary judgment as a matter of law.” ECF No. 50 at 1. NOVO appears to
be relying on language applicable to general premises liability to invitees, rather than the
more nuanced standard for duty to children under § 339. Traditional arguments about the
standard of care owed to invitees under a negligence cause of action cannot be applied so
easily to standards of care owed to children, and a motion for summary judgment on a
negligence against involving harm to children requires a defendant to address the
elements of § 339.

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IV. CONCLUSION
For the foregoing reasons the court DENIES the motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 26, 2019
Charleston, South Carolina

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